* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 04.02.2011
+ R.S.A.No.153/2007 & CM No. 7669/2007 (for stay)
M/S DREAM LAND & CO. ...........Appellant
Through: Mr. Neeraj Malhotra, Advocate.
Versus
SHANTI NARAIN BHATNAGAR
(DECEASED THROUGH LRS & Ors. ..........Respondent
Through: Mr. Sanjay Goswami, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated 23.02.2007 which had endorsed the findings of the trial Judge dated 24.01.2004 whereby the three suits filed by the plaintiffs (first two suits were for arrears of rent and the third suit was for ejectment) had been decreed. The case of the plaintiffs was that defendant No. 1 i.e. M/s Dream Land & Company was a tenant of the plaintiffs and defendants No. 2 to 7 jointly on monthly rent of Rs.700/-. The suit property comprised of land measuring 23072 sq ft. bearing Government Survey No. 1016/647 & 645 situated within the area of Chandauli @ Shahdara. The rent deed executed between the parties is dated 28.04.1983. Two suits had been filed by the plaintiffs seeking recovery of arrears of rent qua 50% of their share from defendant No.
1. The said suits had been decreed and this was confirmed in appeal. RSA Nos.153/2007 Page 1 of 4 The appellant before this Court is defendant No. 1 namely M/s Dream Land and Company. He has no grievance to the decree of the said suits for recovery of 50% of arrears of rent by the plaintiffs. He is, however, aggrieved by the decree passed in the third suit which was a suit for ejectment filed by the plaintiffs against defendant No. 1. The contention of defendant No. 1 is that he had purchased 50% of this suit property from defendants No. 2 to 7 vide a sale deed dated 04.12.1990 and he had become owner of 50% of this suit land by virtue of the said sale deed. The impugned judgment directing ejectment of defendant No. 1 from the whole of the suit property has raised a substantial question of law as the plaintiffs are the owners of only 50% of the suit land and they could not have obtained a decree for the entire suit property when defendant No. 1 had purchased the 50% rights of the suit property of defendants No. 2 to 7 vide the aforenoted sale deed.
2 Admittedly the sale deed dated 04.12.1990 did not see the light of the courts below. It was a document not proved in evidence. Learned counsel for the appellant has no answer to this query put by this Court as to why this document was not proved before the court below. It is a settled proposition at law that a single co-owner can seek ejectment of the party from the suit property. The plaintiffs were not barred from doing so. The decree that followed cannot thus be assailed on this ground.
3 Learned counsel for the appellant has urged that admittedly both appellant No. 2 Prakash Narain Bhatnagar and respondent No. 6 Jagdish Narain Bhatnagar had expired in the course of the proceedings but no application had been filed to bring their legal RSA Nos.153/2007 Page 2 of 4 representatives on record. The suit proceedings had necessarily abated. This has raised a substantial question of law. This contention has been dealt with in the impugned judgment in para 9. The Court had returned a finding that even in the absence of one of the co-owners, the contesting co-owner cannot be deprived from seeking his remedy. Not brining on record the legal heirs of deceased appellant No. 2 and deceased respondent No. 6 would not affect the right to sue as right to sue still survives; appeal would not abate. Order XI Rule 4 of the Code also permits one of the several plaintiffs or defendants to obtain a reversal of the whole decree where it is common to all. This has been reiterated in 1997 IV AD (Delhi) 754 Owners of Shamlal Patti Mirza Vs. Union of India. This argument raises no substantial question of law.
4 It has lastly been argued that the appeal before the appellate court was time barred and no application seeking condonation of delay has also been filed. It is pointed out that there were three suits which had been filed and the certified copies of the judgments had in fact been obtained by the appellant on 04.02.2004 itself but the appeal had been filed on 07.05.2004 and the dates have been wrongly noted in the impugned judgment; it has raised a substantial question of law. Reference has been made to para 8 of the impugned judgment. In para 8 of the said judgment, it had been recorded that the judgment of the trial Judge was delivered on 24.01.2004. The appellant had applied for certified copy on 04.02.2004 and although copy was made available to him on 07.05.2004, the appeal was filed on 12.05.2004 as 09.05.2004 to 11.05.2004 were the holidays in the District Court. The Court had recorded that the delay, if any, is thus RSA Nos.153/2007 Page 3 of 4 condoned. This was on an oral request of the appellant. Nothing precluded the Court from doing so. Submission of the learned counsel for the appellant that the certified copy of the appeal was in fact ready on 11.03.2004 which is evident with page 124 of the paper book has been answered by the respondent by stating that this certified copy was made available in another suit between the parties. Although admittedly the judgment dated 24.01.2004 was a common judgment delivered in all the three suits yet the record placed before this Court shows that in the present suit which had been challenged by the plaintiff before the first appeal Court, the certified copy had been delivered to him only on 07.05.2004. There is no wrong reading of this factual averment. There was no delay in filing the appeal before the first appellate Court. No substantial question of law has arisen on this score.
5 The substantial questions of law have been embodied on page 6 onwards of the paper book. They have been adverted to and all those emphasized and urged by the learned counsel for the appellant have been dealt with Supra. No other argument has been urged. 6 No such substantial question of law has arisen. Appeal as also pending application is dismissed in limine.
INDERMEET KAUR, J.
FEBRUARY 04, 2011 A RSA Nos.153/2007 Page 4 of 4